LexisNexis Corporate & Securities Law Community 2011 Top 50 Blogs

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Even Mark Zuckerberg Has to Follow the Rules  

The recent case Espinoza v. Zuckerberg proves even the powerful have to follow the rules.  In a case of first impression the Delaware Chancery Court addressed the question:

Can a disinterested controlling stockholder ratify a transaction approved by an interested board of directors, so as to shift the standard of review from entire fairness to the business judgment presumption, by expressing assent to the transaction informally without using one of the methods the Delaware General Corporation Law prescribes to take stockholder action?

The Facts in Brief

In August, the board of directors of Facebook meet and voted to increase the compensation paid to members of its audit committee. Plaintiff Espinoza filed a derivative complaint challenging the decision to increase compensation as breach of fiduciary duty “for awarding and/or receiving excessive compensation at the expense of the Company,” a waste of corporate assets, and unjust enrichment.

When the suit was filed the parties agreed that although the compensation committee had discussed the matter, the approval was given by the board and therefore would be governed by the entire fairness standard of review as a self-dealing transaction.  After the filing, Mark Zuckerberg, who did not receive any of the disputed 2013 compensation and who controlled over 61% of the voting power of Facebook’s common stock, expressed his approval of the 2013 compensation for the non-management directors in a deposition and an affidavit.

Defendants then sought summary judgment on the theory that Zuckerberg, in his capacity as a disinterested stockholder, ratified the 2013 compensation, thereby shifting the standard of review governing that transaction from entire fairness to the business judgment presumption. Defendants also seek to dismiss the waste claim for failure to state a claim upon which relief can be granted. 

The Decision

As stated by the court “The fundamental issue here is whether Zuckerberg’s approvals were in a form sufficient to constitute stockholder ratification” when “Zuckerberg did not make use of a formal method of expressing stockholder assent, namely by voting at a stockholder meeting or acting by written consent in compliance with Section 228 of the Delaware General Corporation Law.”

Defendants argued that informal ratification by the controlling shareholder was sufficient, relying on general principals of agency law.

After walking through the history of what is now Section 228 of the Delaware General Corp. Law, the court concluded that formalities must be followed for shareholder action by written consent to be valid, noting: 

  • the provisions of the DGCL governing the ability of stockholders to take action, whether by voting at a meeting or by written consent, demonstrate the importance of ensuring precision, both in defining the exact nature of the corporate action to be authorized, and in verifying that the requirements for taking such an action are met, including that the transaction received enough votes to be effective. They also demonstrate the importance of providing transparency to stockholders, whose rights are affected by the actions of the majority. In particular, stockholders have the right to participate in a meeting at which a vote is to be taken after receiving notice and all material information or, in the case of action taken by written consent, to receive prompt notice after the fact of the action taken.  


  • where formal structures govern the collective decision-making of stockholders who coexist as principals.,,,,[t]hese formalities serve to protect the corporation and all of its stockholders by ensuring precision, both in defining what action has been taken and establishing that the requisite number of stockholders approved such action 

Finally, the court dismissed the motion for summary judgement on all but the waste claim, stating: 

  • I therefore conclude that stockholders of a Delaware corporation—even a single controlling stockholder— cannot ratify an interested board’s decisions without adhering to the corporate formalities specified in the Delaware General Corporation Law for taking stockholder action. 

Consequently, neither Zuckerberg’s affidavit nor his deposition testimony ratified the Facebook board’s decision to approve the 2013 Compensation, which decision remains subject to entire fairness review because a majority of the board was personally interested in that transaction. The entire fairness standard of review requires defendants to establish that the “transaction was the product of both fair dealing and fair price.” Because defendants relied solely on a ratification defense, they did not attempt to produce evidence of entire fairness sufficient to show an entitlement to judgment as a matter of law, nor have they demonstrated that there is no genuine issue of material fact as to the entire fairness of the 2013 Compensation. 

What to make of this case?  As we know from piercing cases, formalities matter.  Even the rich and powerful must pay attention. 



Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): Trinity Guidance (Part 11)

In perhaps a bit of surprise, the guidance also addressed the test articulated in Trinity v. Wal-Mart.  There the Third Circuit found that, in applying the public policy exception to the ordinary business exclusion, “the subject matter of its proposal must ‘transcend’ the company’s ordinary business.” The court relied on some out of context language to attributed to the staff a position that was, in fact, inconsistent with the views of the staff.

The staff clearly and bluntly disavowed the test.  “This two-part approach differs from the Commission’s statements on the ordinary business exclusion and Division practice.”  The staff reiterated the position that proposals seeking board review of a matter constituted “ordinary business.”  Id. (“We believe our analysis in this matter is consistent with the views the Commission has expressed on how to analyze proposals under the ordinary business exclusion, i.e., the analysis should focus on the underlying subject matter of a proposal’s request for board or committee review regardless of how the proposal is framed.”)

In commenting on the case, the staff expressed concern with the impact of the reasoning. 

  • Although we had previously concluded that the significant policy exception does not apply to the proposal that was submitted to Wal-Mart, we are concerned that the new analytical approach introduced by the Third Circuit goes beyond the Commission’s prior statements and may lead to the unwarranted exclusion of shareholder proposals.   

The staff noted that the concurring opinion had it right.  Id. (“Whereas the majority opinion viewed a proposal’s focus as separate and distinct from whether a proposal transcends a company’s ordinary business, the Commission has not made a similar distinction.  Instead, as the concurring judge explained, the Commission has stated that proposals focusing on a significant policy issue are not excludable under the ordinary business exception “because the proposals would transcend the day-to-day business matters and raise policy issues so significant that it would be appropriate for a shareholder vote.”).

The guidance removes an un-necessary analytical complication from the (i)(7) area.  The "ordinary business" and "public policy" standards are mangled enough without these sorts of additional distractions.     

Thus, a proposal may transcend a company’s ordinary business operations even if the significant policy issue relates to the “nitty-gritty of its core business.”  Therefore, proposals that focus on a significant policy issue transcend a company’s ordinary business operations and are not excludable under Rule 14a-8(i)(7).32  The Division intends to continue to apply Rule 14a-8(i)(7) as articulated by the Commission and consistent with the Division’s prior application of the exclusion, as endorsed by the concurring judge, when considering no-action requests that raise Rule 14a-8(i)(7) as a basis for exclusion.


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): A Complete Copy of the Proposal (Part 10)

The guidance contains a number of useful references that hopefully will play a more important role in the no action process. Footnote 15 indicated that at least sometimes the staff would expect to receive the alternative proposal that management planned to submit.  As the guidance noted: 

  • We remind companies that the staff may need a complete copy of a company’s proposal to evaluate a no-action request under Rule 14a-8(i)(9) and that the staff may not be able to agree that the company has met its burden of demonstrating that a shareholder proposal is excludable if those materials are not included with the company’s no-action request.  This same principle applies when the staff evaluates no-action requests under Rule 14a-8(i)(10). 

In submitting requests for exclusion under subsection (i)(9), companies are not explicitly required to submit the competing proposal.  As a result, the competing proposal, once drafted, can include terms and limitations that differ from the shareholder proposal (or at least the intent of the shareholder proposal).  The guidance suggests that companies that do not submit the competing proposal may not receive the requested no action relief, although the cirsumstances when this will occur are not specified.  At a minimum,  the failure to do so raises some additional risk.  


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): The Unnecessary Encouragement of Precatory Proposals (Part 9)

The guidance has some Delphic language suggesting that the staff may take a harsher view towards shareholder proposals phrased in mandatory terms.  The effect is to encourage shareholders to submit precatory rather than mandatory proposals.  

Footnote 16 to the guidance noted that "there may be instances in which a binding shareholder and management proposal would directly conflict."  This would likely occur where both proposals were binding.  Id. ("We do not believe that a reasonable shareholder would logically vote for two proposals, each of which has binding effect, that contain two mutually exclusive mandates.").

The guidance, however, made clear that in those circumstances, "the Division’s practice under Rule 14a-8(i)(1), our no-action response may allow proponents to revise a proposal’s form from binding to nonbinding." Where this was done within a specified time and "a reasonable shareholder could otherwise logically vote for both proposals, the shareholder proposal would not be excludable under Rule 14a-8(i)(9)."

On the one hand, the guidance demonstrates staff flexibility.  Shareholders caught in a "conflict" can amend their proposal and, at least in some circumstances, avoid exclusion by rendering the proposal precatory.

On the other, this essentially allows management to exclude a binding proposal simply by submitting a proposal with conflicting "mandates."  This seems different than "directly conflicts" and arguably applies anytime the terms of the proposals have differences that prevent the implementation of both.  

Take for example a binding proposal by management to provide access to any shareholder owning 9% of the shares for at least five years.  To the extent that shareholders want to submit a binding alternative at 3%/three years, the guidance creates the possibility that (i)(9) would apply since both "mandates" cannot be implemented if both are adopted.  On the other hand, if the shareholders submits a 3%/three year proposal that is precatory, (i)(9) would not apply.  They can give advice but not mandate.  Unfortunately, the "advice" in the form of a precatory proposal can be ignored.

The outcome of this hypothetical depends upon what the staff means by "mandate."  Moreover, under the "reasonable shareholder" analysis, shareholders would presumably have a reason to vote for both access proposals, even if mandatory. 

To the extent that the footnote is intended to allow for the exclusion of proposals that are mandatory and that contain mutually inconsistent terms, the guidance is inconistent with the "reasonble shareholder" test. Moreover, the guidance effectively reinstates the previously disclaimed analysis by allowing for the exclusion of alternatives rather than opposites.  The approach would also be premised upon the possibility that shareholders could adopt two binding proposals that are inconsistent with each other (only one possible outcome out of many).  As the seven examples during the last proxy season illustrated, however, this is an unlikely outcome.  Shareholders as a general matter are sophisticated enough to avoid this result.  As the empirical evidence indicates, a more likely outcome is that only one of the proposals will receive majority support.  

The guidance nonetheless encourages the use of precatory proposals.  While most proposals are precatory, there will be an increasing need for, and interest in, binding proposals that seek to modify management efforts, particularly in the context of shareholder access.  With management adopting more and more access provisions, shareholders will have an interest in modifying the terms to make them more investor friendly. These types of proposals would, at least in some cases, be mandatory.

Whether a shareholder chooses to submit a precatory or binding proposal should be determined by the best interests of the corporation and its shareholders, not by the requirements of a proxy rule. 


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): Substantially Implemented (Part 8)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts).

The other issue unaddressed by the Rule was the interrelationship between subsection (i)(9) and subsection (i)(10).  Subsection (i)(10) allows proposals to be excluded if "substantially implemented."  A company seeking to exclude a shareholder access proposal could adopt its own version then argue that the shareholder proposal has been substantially implemented.

Where the two proposals are identical, the result under the exclusion is clear.  When the two proposals differ, however, the analysis becomes more complex.  The staff must determine whether the differences are substantial or insubstantial.  One comment letter submitted in the (i)(9) review (submitted by the author of this post) raised concerns with staff interpretation under subsection (i)(10).

In two no action letters, the staff considered proposals seeking to give shareholders the right to call a special meeting at a specified percentage of voting shares (20% in one case; 25% in the other).  The companies gave shareholders the right to call a special meeting at the requested percentage.  The companies, however, limited shares eligible to call a special meeting to those held continuously for a year or more in a net long position.   The no action requests did not analyze the impact of the one year holding period on the number of shares eligible to call a special meeting.  It was possible, therefore, that the holding period could have made it impossible to call a special meeting.   

The staff nonetheless granted the no action request, concluding that management had substantially implemented the shareholder proposal.  The effect was to deny shareholders the right to vote on an alternative proposal that contained fewer restrictions or limits on the right to call a special meeting.  To the extent that these interpretations remain in place, they suggest that while companies cannot obtain the exclusion of "alternatives" under (i)(9), they can under (i)(10).  Presumably the staff does not mean for this to occur and will need to clarify the position through the no action process. 


Crowdfunding: The SEC Finally Acts on the Proposed Rules

On October 23, 2013 the Securities and Exchange Commission (“SEC”) unanimously voted to propose a set of crowdfuding rules under the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). Title III of the JOBS Act created an exemption under the securities laws to allow for crowdfunding and directed the SEC to create a set of rules implementing that exemption. While the SEC proposed the rules in October 2013, the rules have languished since then until October 30, 2015 when the SEC finally acted.

The SEC held an open meeting on October 30, 2015 to consider whether to adopt the proposed rules and voted 3 to 1 to approve the rules. The crowdfunding rules are the last major mandated piece of the JOBS Act to be enacted. The rules will permit individuals to invest in crowdfunding transactions subject to certain limitations. 

The original rules required an issuer to provide audited financial statements by an independent public accountant if the offering was going to exceed $500,000. As a part of the final rules adopted by the SEC, a change was made to the audit provision requirements. The first time a company relies upon the new rules for an offering that is more than $500,000, but less than $1,000,000, the issuer can provide financial statements that have undergone a review by an independent public accountant rather than audited financial statements. However, if audited financial statements are available, the company must provide them. This exception only applies the first time the issuer utilizes and undertakes a crowdfunding offering. 

Some individuals, including SEC Commissioner Piwowar who voted against the proposed rules adoption, believe that the regulations are too burdensome for many small businesses to comply with. Commissioner Piwowar noted, “many traps for the unwary are hidden in the regulations, creating potential nightmares for small business owners that fail to place regulatory compliance at the top of their business plans.” Additionally, the potential costs associated with the offering (including a financial statement review or audit) may prevent small issuers from taking advantage of the crowdfunding rules - rules that were meant to allow exactly those types of company to raise money more easily. 

The new rules and forms will become effective 180 days after publication in the Federal Register. Additionally, the staff at the SEC will issue a report regarding the rules and their impact within three years of the rules’ effectiveness. In conjunction with the crowdfunding rules, the SEC has indicated that the forms necessary for the funding portals to register with the SEC will be effective in 2016.


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): Gaming the System (No. 7)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts).

The Whole Foods appeal raised two issues, once concerning the precatory nature of the proposal, the other pointing to staff precedent permitting the exclusion of proposals submitted by management "in response to" the shareholder proposal.  

The staff did not explicitly respond to the second argument.  The staff did state that some commentators had “suggested that the exclusion should not apply when a shareholder submits his or her proposal before the company approves its proposal.”  The timing of the submission would not affect whether the proposals conflicted.  As the staff reasoned:  "This approach would not necessarily prevent a shareholder from submitting a proposal opposing a management proposal, in contravention of the proxy rules governing solicitations."

Some commentators did raise the timing issue.  See Letter from Domini (noting that the exemption was "based on the sequencing of proposals"). See also Letter from US SIF (“The potential for exclusion under Rule 14a-8(i)(9) should not apply to shareholder proposals that were submitted prior to the public announcement of an allegedly conflicting management proposal.”).

But timing was for the most part a substitute for motive. The "in response to" argument sought to prevent companies from using the exclusion as a tactical device only designed to exclude the shareholder proposal.  See Letter from McRitchie (“Staff also made clear that subsection (i)(9) could not be used as a tactical weapon in order to exclude shareholder proposals. To the extent company proposals were developed 'in response to' a proposal submitted by shareholders, the subsection was unavailable.”); Letter from Mack, et al (“The Rule’s purpose is not to provide an avenue for management to develop after-the-fact “counterproposals” for the purpose of excluding properly submitted shareholder proposals.7 A broad interpretation of the type put forward by the corporate bar would reverse the Rule’s original intent, and permit this sort of gamesmanship.”); see also Letter from Law Firms (“One of the criticisms of the Whole Foods no-action letter and similar no-action letters under Rule 14a-8(i)(9) has been that such position allows companies that may not otherwise have intended to bring a matter to a shareholder vote to avoid including controversial shareholder proposals in the company’s proxy materials.”).

Thus, motive for the most part is not resolved exclusively through consideration of the timing of the submission of a proposal.  A company considering an access proposal for an upcoming meeting may only complete the consideration after receipt of the shareholder proposal.  That can be contrasted with a company that has no intention of implementing an access proposal but decides to do so only as a means of obtaining the exclusion of the shareholder proposal. 

Motive is an area where the staff would like to avoid.  It means essentially acting as a fact finder on the purpose of a particular proposal.  This problem commonly occurred in the past when the staff had to determine whether a proposal was submitted as a result of a personal grievance, particularly where the proposal was one that otherwise would be included under Rule 14a-8.  

Nonetheless, there are circumstances where the tactical use of the exclusion would likely be clear on its face. See Keith F. Higgins, Rule 14a-8:  Conflicting Proposals, Conflciting Views, PLI Program on Corporate Governance, NY, NY (Feb. 10, 2015) ("There may be a concern that, where management opposes the substance of the shareholder’s proposal, the company will present a proposal principally to prevent shareholders from expressing their views on it. For example, if in response to a proposal to allow holders of 10% of the outstanding shares to call a special meeting of shareholders, management proposes a threshold of 90%, which appears totally unworkable, one might reasonably wonder whether the motive in presenting that proposal was solely to have a basis to exclude the shareholder proposal.").  

Moreover, if the exclusion could be used in such a tactical fashion, companies could submit the same unworkable proposal year after year.  Id. ("We have heard the concern expressed that management could continue year after year to come up with a slightly different proposal for the purpose of keeping the shareholder proposal from ever making it into the proxy materials. While we have not yet seen this concern materialize, it is certainly not beyond the realm of possibility.").

The subsection should not be allowed to be used in such a fashion.  Nonetheless, the guidance is silent on the subject. 


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): The Conundrum of Precatory Proposals (Part 6)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts).

In issuing the guidance, the staff addressed one of the two issues raised in the Whole Foods appeal.  The shareholder argued that a “conflict” could not arise when the proposal submitted by shareholders was precatory. As the staff reasoned:  “We believe that a precatory shareholder proposal, while not binding, may nevertheless directly conflict with a management proposal on the same subject if a vote in favor is tantamount to a vote against management’s proposal.”  

The analysis illustrates some of the difficulties associated with the reasonable shareholder standard.  It may be true that a reasonable shareholder would not vote for opposites, whether mandatory or precatory.  But the language of Rule 14a-8(i)(9) speaks to proposals that "directly conflict" with each other.  It is still difficult to understand how a precatory proposal, which only provides the board with advice, directly conflicts with a management proposal.  

Moreover, there are benefits in allowing shareholders to vote on "opposite" proposals, particularly if one of them is precatory.  For example, if the company proposes to combine the chair and CEO positions, shareholders can register their opposition and vote against the proposal.  A negative vote, however, cannot necessarily be interpreted to mean that shareholders favor the combining of the two positions.  Shareholders may simply oppose a categorical rule that the two positions be combined.

An alternative proposal to prohibit the combining of the two positions, therefore, would allow shareholders to provide management with additional information about their views that will not necessarily be conveyed in a no vote on the management proposal.  It is possible, for example, that both management's and the shareholder's proposal could fail, providing the company with a greater understanding of the views of shareholders.    

The risk that both would pass assumes that shareholders would make decisions that are inconsistent and ambiguous.  But as the votes in the seven companies with competing access proposals showed, this is an unrealistic and unlikely assumption.  Precatory proposals provide information; they do not create conflicts. 


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): Analysis of the (i)(9) Guidance (Part 5)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts). 

The analysis under Rule 14a-8(i)(9) will now focus on the actions of a reasonable shareholder.  A direct conflict will exist where "a reasonable shareholder could not logically vote in favor of both proposals." As the guidance indicates, this is clearest in the case of opposites.  Where management proposed to combine board chair and CEO, a shareholder proposal that sought to separate the two positions would directly conflict.  Proposals involving opposites, therefore, can be excluded; mere alternatives cannot.

The unanswered question concerns proposals that involve the same subject matter but include terms that are so extreme that no reasonable shareholder would vote for both.  Thus, for example, the no action letter that instigated the staff review, Whole Foods, involved a shareholder proposal calling for access at 3% of the voting shares with a three year holding period.  The management alternative set out in the no action letter request sought to provide access rights to a single shareholder with at least 9% of the voting shares (Whole Foods later dropped the percentage to 5%).  At the time, no shareholder would have qualified under the terms of the proposal.

The management alternative in Whole Foods, therefore, could be viewed not as a proposal designed to provide access but as a proposal designed to deny the right of access.  To the extent perceived in this manner, reasonable shareholders would be unable to vote simultaneously for access (the shareholder proposal) and against access (the management proposal).  The guidance, therefore, leaves open the possibility that companies submitting alternative proposals can obtain exclusion of a shareholder proposal by arguing that the two proposals have sufficiently antagonistic terms, even though seeking the same broad goal. Indeed, the guidance made no mention of the Whole Foods no action letter, leaving it unclear whether, under the new guidance, the result would have been any different.  

The staff intended to avoid the use of (i)(9) to exclude alternatives.  Presumably the two proposals discussed in the Whole Foods no action request would qualify as alternatives and, as a result, the shareholder proposal would not be subject to exclusion.  

Nonetheless, this shows the tension over the reasonable shareholder test. The staff may find itself, in the short term, inundated with requests arguing that the management alternative is just different enough from the shareholder proposal that no reasonable shareholder would support both.  The staff will need to be firm on this issue, employing a very broad definition of reasonable shareholder.  Otherwise, the subsection will again be used to prevent shareholders from having effective choice in the voting process.      


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): The Guidance on (i)(9) (Part 4)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts). 

Last week, the staff issued the requisite guidance.  The guidance covered two topics:  The interpretation under (i)(9) and the interpretation adopted by the Third Circuit in the Trinity case. 

With respect to the (i)(9) issue, the staff concluded that, as adopted, the subsection “was intended to prevent shareholders from using Rule 14a-8 to circumvent the proxy rules governing solicitations.”  The staff reaffirmed the reasoning of the interpretation.  Id. (“We do not believe the shareholder proposal process should be used as a means to conduct a solicitation in opposition without complying with these requirements.”). 

The guidance conceded that the provision had been used to exclude proposals that could result in “alternative and conflicting decisions for the shareholders” and create the potential for “inconsistent and ambiguous results.”  In doing so, application of the exclusion “focused on the potential for shareholder confusion and inconsistent mandates, instead of more specifically on the nature of the conflict between a management and shareholder proposal.”  The staff opted to return the interpretation to the original meaning and focus on conflicts rather than alternative and conflicting decisions.

The staff would do so by focusing on whether the proposal submitted by shareholders resulted in a “direct conflict” with management’s proposal.  In making the determination, the staff determined that a “direct conflict” would exist where “a reasonable shareholder could not logically vote in favor of both proposals, i.e., a vote for one proposal is tantamount to a vote against the other proposal.”  As the guidance explained: 

  • While this articulation may be a higher burden for some companies seeking to exclude a proposal to meet than had been the case under our previous formulation, we believe it is most consistent with the history of the rule and more appropriately focuses on whether a reasonable shareholder could vote favorably on both proposals or whether they are, in essence, mutually exclusive proposals.  

Likewise, the guidance specifically addressed proposals that involved overlapping subject matters and could be supported by reasonable shareholders.  One involved a compensation plan.  See Id. (“Similarly, a shareholder proposal asking the compensation committee to implement a policy that equity awards would have no less than four-year annual vesting would not directly conflict with a management proposal to approve an incentive plan that gives the compensation committee discretion to set the vesting provisions for equity awards.  This is because a reasonable shareholder could logically vote for a compensation plan that gives the compensation committee the discretion to determine the vesting of awards, as well as a proposal seeking implementation of a specific vesting policy that would apply to future awards granted under the plan.”).   

The other involved shareholder access, the type of proposal that instigated the reexamination.  The guidance concluded that shareholders could support different proposals with different terms.  The example involved competing access proposals with different percentage thresholds, different holding periods, and different number of nominees.  Id. (“if a company does not allow shareholder nominees to be included in the company’s proxy statement, a shareholder proposal that would permit a shareholder or group of shareholders holding at least 3% of the company’s outstanding stock for at least 3 years to nominate up to 20% of the directors would not be excludable if a management proposal would allow shareholders holding at least 5% of the company’s stock for at least 5 years to nominate for inclusion in the company’s proxy statement 10% of the directors.”). 

As the staff reasoned, “both proposals generally seek a similar objective, to give shareholders the ability to include their nominees for director alongside management’s nominees in the proxy statement, and the proposals do not present shareholders with conflicting decisions such that a reasonable shareholder could not logically vote in favor of both proposals.”   

The guidance makes clear, therefore, that reasonable alternatives will not be subject to exclusion under the subsection.  In those circumstances, shareholders may vote for both proposals, even when preferring one over the other.  Thus, the possibility that both may pass will no longer be a stand alone basis for exclusion.  

We will analyze the guidance in the next posts and note some remaining open issues.


US Chamber of Commerce Won’t Take on Pay Ratio Rule; Will Focus on Conflict Minerals

In what may be a surprise to many, according to the Wall Street Journal, “the U.S. Chamber of Commerce isn’t planning to mount a legal challenge to the Securities and Exchange Commission’s pay ratio rule.”

The pay ratio rule was adopted by a 3-2 vote by the SEC on August 5, 2015 and requires all public companies to disclose the ratio of the compensation of their chief executive officers (CEO) to the median compensation of their employees.  Under the new rule, mandated by Dodd-Frank most companies will have to start reporting their ratios in their 2018 proxy statements. 

Given the track record of the Chamber of Commerce, many thought it would take on the pay ratio rule.  Instead, the Chamber concluded not to challenge the rule at this time in the belief that the “political landscape around the rule could [ ] change I Congress and the White House following the 2016 election.”

Instead of using resources to challenge the pay ratio rule, the Chamber feels it is “more important to move forward with litigation surrounding its challenge” of the conflict minerals rule (discussed many times before on this blog).  The Chamber recognizes that the conflict minerals case ‘has implications for the pay ratio.”

It is high time that the challenge to the conflict minerals rule (“Rule”) get the attention it deserves.  While some (including this author) have been paying close attention to the tortured legal process of the adoption of and challenges to the Rule, for many it has stayed below the radar.  It is time for all to pay heed. The litigation over the Rule has serious implications for disclosure regulation as a whole.  In their petitions for an en banc review of the case, the SEC and Amnesty International (and intervenor in the case) argued respectively that the panel’s holdings call “into question the application of [the more lenient standard of review] to many disclosures required under the securities laws, including those aimed at preventing investor deception,” and “threaten the viability of the modern securities regime by precluding application of the relaxed First Amendment review long applied by this Court to a range of established disclosures.”

For those who have not yet been following this case closely here is a brief summary of the holdings in the panel’s decision, highlighting the portions deemed must problematic by those seeking the en banc review. 

First, the panel ruled (in contrast to the July 2014 ruling in by the DC Circuit in American Meat Institute v. United States Dept. of Agriculture, (discussed here) that the applicable standard of review for compelled factual commercial disclosures under the First Amendment announced in Zauderer v. Office of Disciplinary Counsel applies only to disclosures in connection with voluntary advertising or product labeling.  In Zauderer the Supreme Court held that compelled commercial speech “rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers,” provided that the requirement is not “unjustified or unduly burdensome disclosure” so as to chill protected commercial speech.  Instead of analyzing the Rule under the more lenient Zauderer test, the panel instead said that the relevant test was the more stringent one established in Central Hudson Gas & Electric Corp. v. Public Service Commission that requires that a regulation compelling speech be tested under a four-part analysis: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”

An amicus brief submitted by an interesting coalition of groups including, among others, Truth Initiative, Public Health Law Center, National Association of County and City Health Officials, Campaign for Tobacco-Free Kids, American Cancer Society Cancer Action Network and Tobacco Control Legal Consortium argues that if the panel’s ruling stand, many mandatory commercial disclosures required in other contexts, such as OSHA warnings to employees about workplace hazards, environmental notifications and mandatory disclosures to consumers in financial transactions would be in jeopardy under the more strict standard of review.

The amicus brief also argues that Zauderer does not apply to disclosures relating to any issue around which there is public controversy, even if there is no controversy about the truth of the required disclosures.… Under the panel majority’s rule, the requirement that automobile manufacturers disclose mileage ratings and affix a label to the fuel compartment of vehicles capable of operating on alternative fuels,… would apparently be subject to heightened scrutiny because of public controversies about climate change… and disagreements about mandatory vaccinations would support heightened scrutiny of requirements that schools report immunization rates.” 

The brief next argues the panel’s  holding requiring proof that disclosures are effective in achieving the state’s interest could endanger the use of “such basic warning label regimes as those governing the presence of allergens in food, …. the safety of children’s toys,… and the serious side effects of prescription drugs.”


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): The Empirical Evidence (Part 3)

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts). 

As a result of the staff's decision not to issue no action letters under subsection (i)(9) during the prior proxy season, companies were unable to obtain the exclusion of a shareholder access proposal by submitting an alternative on the same subject.  For the most part, therefore, companies included the shareholder proposal in the proxy materials and did not provide an alternative.  In seven cases, however, shareholders confronted proposals submitted by both shareholders and management.

The seven cases provided a petrie dish of sorts to test an interpretive approach taken under subsection (i)(9). In allowing the exclusion of proposals, the staff often relied on representations that the failure to do so could result in alternative and conflicting decisions that would potentially result in inconsistent and ambiguous results. Indeed, the no action letter issued in Whole Foods relied in part on this approach.  See Whole Foods, Dec. 1, 2014 ("You indicate that the proposal and the proposal sponsored by Whole Foods Market directly conflict. You also indicate that inclusion of both proposals would present alternative and conflicting decisions for the stockholders and would create the potential for inconsistent and ambiguous results.").  

So what happened in the seven cases?  In three cases, the shareholder proposal received majority support (AES Corp., CloudPeak Energy & Visteon Corp).  In those three cases, the shareholder proposal received support of between 66% and 76% of the shares voted.  The percentage received by management? 36.17%, 25.92%, and 21.15%, respectively.  

In three cases, the management propopsal received majority support:  Exelon:  52.58%; Expeditors: 70.32%; SBA: 51.65%.  In one case (Chipotle), the sharehodler proposal received 49.86% while the management proposal received 34.71%.   For additional statistics, go here.  

Thus, in no case were both adopted.  Moreover, the percentage separating the two proposals was generally significant.  In only one case were the two totals relatively close (SBA Communications, where management's proposal received 51.65% and the shareholder proposal received 46.28%).  

In short, the results were neither ambiguous nor inconclusive.  In the once case where the final tallies were close, the evidence suggested a shareholder base very divided on the issue.  The information may not provide an easy path for management but its hard to call the results inconsistent and ambiguous.  The data, therefore, suggested that the exclusion of alternative (as opposed to conflicting) proposals could not be justified as a benefit to shareholders.      


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): The Catalyst (Part 2) 

We are discussing the staff guidance issued in Staff Legal Bulletin No. 14H (CF) on shareholder proposals. Specifically, the Bulletin provided guidance on subsections (i)(7) (ordinary business) and (i)(9) (directly conflicts).  

The guidance arose as a result of an unusual set of circumstances during the previous proxy season.

During the proxy season, a shareholder submitted a proposal to Whole Foods asking the company to amend the corporate documents to provide shareholders with a right of access.  The proposal, which was precatory in nature, called for the company to provide the right of access to shareholders owning, individually or collectively, 3% of the voting shares for at least three years. 

The company proposed an alternative, seeking to provide access rights to any shareholder holding 9% of the outstanding voting shares for at least 5 years.  Moreover, when the draft of the bylaw was actually included in the proxy statement, it required the qualifying shareholder to include a representation "with respect to maintaining qualifying ownership of the Required Shares for at least one year following the annual meeting."  

The staff issued a no action letter allowing Whole Foods to exclude a shareholder proposal under subsection (i)(9) of Rule 14a-8.  As the staff reasoned:

  • You represent that matters to be voted on at the upcoming stockholders' meeting include a proposal sponsored by Whole Foods Market to amend Whole Foods Market's bylaws to allow any shareholder owning 9% or more of Whole Foods Market's common stock for five years to nominate candidates for election to the board and require Whole Foods Market to list such nominees with the board's nominees in Whole Foods Market's proxy statement. You indicate that the proposal and the proposal sponsored by Whole Foods Market directly conflict. You also indicate that inclusion of both proposals would present alternative and conflicting decisions for the stockholders and would create the potential for inconsistent and ambiguous results. Accordingly, we will not recommend enforcement action to the Commission if Whole Foods Market omits the proposal from its proxy materials in reliance on rule 14a-8(i)(9).

Thus, the staff relied on the possibility of a direct conflict and the possibility of "inconsistent and ambiguous" results as a basis for exclusion.   The letter, therefore, established a precedent for other companies to submit managerial alternatives with harsh terms as a means of obtaining exclusion of a more moderate shareholder proposal. 

Indeed, prior to the Whole Foods no action letter, a number of companies had already sought exclusion of the access proposal on similar grounds.  See Letter from Michael Garland, Assistant Comptroller, City of New York, Office of the Comptroller, July 17, 2015 ("Following Whole Foods, twenty-five additional companies (seventeen of which were responding to NYC Systems-sponsored proposals) quickly submitted requests for no-action relief under the Rule. Each request unequivocally represented that at its upcoming annual meeting, the company would be submitting for shareowner approval its own resolution to provide for proxy access."). 

Following issuance of the no action letter, the shareholder sought reconsideration by the staff and an appeal to the full Commission.  The shareholder argued that subsection (i)(9) did not apply to precatory proposals since, as advisory statements, they could not directly conflict with a management alternative.  

Relying on past staff positions, the shareholder also argued that (i)(9) did not allow for the exclusion of management proposals submitted “in response to” a shareholder proposal.  In a follow up letter, the shareholder noted that  the company had not denied “that the mandatory bylaw proposed by Whole Foods was adopted ‘in response to’ the precatory proposal submitted in this case. As a result, this is a stand-alone basis for the inapplicability of subsection (i)(9).” 

The staff granted reconsideration and withdrew the original no action letter.  In addition, the staff also withdrew a previously issued no action letter that allowed for the exclusion of a shareholder proposal under (i)(9) that addressed special meetings.  The Chair of the SEC “directed the staff to review the rule and report to the Commission on its review.”  The review required consideration of the “proper scope and application of the rule. 

As a result, the staff opted to issue no letters under subsection (i)(9) during that proxy season.  As the staff noted:  “In light of Chair White's direction to the staff to review Rule 14a-8(i)(9) and report to the Commission on its review, the Division of Corporation Finance will express no views on the application of Rule 14a-8(i)(9) during the current proxy season.”). Moreover, in one case, the staff withdrew a letter previously issued under the subsection. See BorgWarner Inc. (Feb. 6, 2015).

During the review period, the staff sought and received a number of comments. Moreover, the shareholders were, in some cases, allowed to vote for proposals on the same subject matter submitted by both shareholders and management, essentially putting in place a market test over the degree of confusion incurred by shareholders when confronted with this type of choice. 


Shareholder Proposals & Staff Legal Bulletin No. 14H (CF): Overview (Part 1)

The staff just issued the long awaited guidance on subsection (i)(9) of Rule 14a-8, just in time for the upcoming proxy season.

The guidance is a thoughtful attempt to return subsection (i)(9) to its original roots.  The analysis under (i)(9) will now focus entirely on whether proposals are direct conflict.  A direct conflict exists "if a reasonable shareholder could not logically vote in favor of both proposals, i.e., a vote for one proposal is tantamount to a vote against the other proposal."  The guidance for the most part ensures that the subsection will be used to exclude conflicting rather than alternative proposals. 

The guidance makes clear, therefore, that reasonable variations in proposals will not be sufficient to create a conflict.  Thus, for example, special meeting proposals that differ on the percentage of voting shares needed to call a meeting will not be deemed to be in a conflict, effectively overturning a long line of no action letters that had taken the opposite position.  In addition, the guidance makes clear that the subsection cannot be used to exclude a shareholder access proposal because of modest differences in share ownership, holding periods and number of directors subject to nomination. 

The guidance went beyond the concerns over subsection (i)(9).  The guidance effectively overturned the holding of the majority opinion in Trinity v. Wal-Mart.  In applying the public policy exception to the ordinary business exclusion, the Third Circuit majority had required that the subject matter of the proposal "transcend" the company's ordinary business.  The staff concluded that the test "differ[ed] from the Commission’s statements on the ordinary business exclusion and Division practice" and that it would not be applied in the no action process.

Over the next several posts, we will discuss the guidance in more detail.  In addition, we will include some observations concerning matters not addressed in the guidance. To the extent there are lacunae in the analysis, answers will likely emerge during the proxy season as companies use the no action letter process to test the boundaries of the guidance.  


KB Partners I, LP v. Pain Therapeutics, Inc.: A Short Lesson on Disclosing Material Developments to Shareholders

In KB Partners I, LP v. Pain Therapeutics, Inc., 2015 BL 193453 (W.D. Tex. June 16, 2015), the United States District Court for the Western District of Texas denied a motion for summary judgment filed by Pain Therapeutics Inc. (“PTI”) and three of PTI’s executives, Remi Barbier, Nadav Friedman, and Peter Roddy (collectively “Defendants”) in a class action for securities fraud brought by KB Partners I, LP (“Plaintiff”), an investment firm that purchased PTI securities.  

According to the allegations in the complaint, PTI is a biopharmaceutical company in the business of developing pharmaceutical products for commercial sale. After the FDA rejected PTI’s “leading candidate for FDA approval”, REMOXY, for a second time, Plaintiff brought a class action for securities fraud under Section 10(b) (15 U.S.C. § 78j(b)) and Rule 10b-5 (17 CFR 240.10b-5). Plaintiff claimed Defendants concealed information from the public regarding REMOXY’s FDA approval, which resulted in PTI’s shares trading at an artificially high price.

Following a motion to dismiss filed by Defendants, Plaintiff filed an amended complaint. The court granted Defendants’ motion to dismiss the amended complaint on September 26, 2012. The court then allowed Plaintiff to file a third and final complaint but informed Plaintiff that “if a third motion to dismiss was granted, this case would be dismissed with prejudice.” The Plaintiff did so on October 15, 2012 and that motion is the subject of this decision.

In the final amended complaint, Plaintiff alleged Defendants led the public to believe problems with REMOXY were fixed while Defendant reapplied for FDA approval, when Defendants knew the developer, King Pharmaceuticals, failed to resolve problems with REMOXY’s stability data—the same problem that precluded FDA approval of the first REMOXY New Drug Application (“NDA”). The complaint further alleged that, despite knowing the second NDA would be rejected by the FDA, PTI rewarded Remi Barbier, Nadav Friedman, and Peter Roddy with handsome compensation.

To prevail on a securities fraud claim grounded in Section 10(b) and Rule 10b-5 violations, a party must show: "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” The Defendants’ filed a motion for summary judgment on the elements of material misrepresentation, scienter, and loss causation. A claim will be dismissed on summary judgment if “there is no genuine dispute as to any material fact.” There is a genuine dispute of a material fact if the evidence shows “that a reasonable jury could return a verdict in favor of the nonmoving party.”

First, the court held the Plaintiff raised a genuine issue as to whether statements made by the Defendants were materially misleading. The court referenced the fact that the Defendants allegedly knew as early as March 2010 that the new dissolution methodology developed by King Pharmaceuticals had similar stability issues as the methodology used in the first NDA. Nonetheless, “[d]espite this knowledge, Defendants failed to communicate details regarding the stability testing problems to the public.” As a result, a reasonable juror could conclude that PTI statements “kept investors ignorant of material risks associated with purchasing PTI stock,” because PTI provided inaccurate information on the stability problems that REMOXY was experiencing.

The court also held the Plaintiff raised a triable issue as to scienter. Plaintiff produced enough evidence to show there was regular communication between PTI and King Pharmaceuticals. The court found this, and other evidence, sufficient to establish a question as to whether Defendants were aware of the ongoing stability issues experienced by REMOXY at the time of the alleged misstatements and omissions.

Finally, the court held the Plaintiff raised a genuine issue of fact as to loss causation. The court accepted testimony in the form of an expert report assessing the cause-and-effect relationship between public disclosures regarding REMOXY and the price of PTI stock over a one-year period. The expert focused on the ten days in which PTI’s stock price experienced the largest changes, upward or downward. The analysis showed a causal relationship between the news disclosed by PTI on three specific days (May 3, June 24, and June 27, 2011) and the drastic changes in stock price following each disclosure. Ultimately, the court found the “FDA’s rejection of REMOXY . . . may have revealed previously concealed information - the ongoing stability problems with REMOXY - to the market.” Accordingly, the court denied Defendants’ motion to dismiss.

The primary materials for this post can be found at the DU Corporate Governance website.


Harman International Industries Securities Litigation Moves Forward: Statements Not “Puffery” and Not Entitled to Safe Harbor Protection 

In In re Harman Int’l Indus. Sec. Litig., No. 14-7017, 2015 BL 199009 (D.C. Cir. June 23, 2015), the United States Court of Appeals for the District of Columbia reversed and remanded the dismissal of Arkansas Public Employees' Retirement System’s ("Plaintiff") complaint alleging Harman International Industries, Inc. (“Harman”) violated Section 10(b) of the Securities Exchange Act of 1934 (the “Act”), Rule 10b-5 thereunder, and Section 20(a) of the Act. The court held the complaint stated a plausible claim of securities fraud with respect to three alleged statements and, thus, survived Harman’s motion to dismiss. 

According to the allegations in the complaint, Harman manufactured high-quality audio equipment. Following an announcement of its potential acquisition, the company’s stock price rose markedly. Upon abandonment of acquisition plans, however, share price fell by more than 24%, and fell further in early 2008 when Harman projected lower earnings per share due in part to a major change in its personal navigational device (“PND”) business. 

Plaintiff filed suit alleging Harman and three of officers made materially false and misleading statements and failed to disclose material adverse facts regarding Harman’s financial condition in annual reports and during conference calls. The complaint asserted that the company characterized PND sales as strong despite having missed sales targets and having made sales at substantial discounts due to obsolescence. The United States District Court for the District of Columbia granted Harman’s motion to dismiss for failure to state a claim, holding two of the statements fell within the statutory safe harbor for forward-looking statements and treating the third statement as “puffery” and, thus, not actionable.

To prove securities fraud, a plaintiff must show the following: (1) a material misrepresentation or omission in connection with the sale or purchase of a security; (2) scienter; (3) reliance; (4) economic loss; and (5) loss causation. To qualify for the safe harbor, meaningful statements of caution must accompany forward-looking statements. These statements of caution must identify factors that may materially affect outcomes represented in the forward-looking statements and must include information that is specific to the company’s status at a specific time. 

The DC Circuit held that two of the allegedly false forecasts were not entitled to safe-harbor protection because they were not accompanied by meaningful cautionary statements. Specifically, the court found Harman’s use of boilerplate phrases, such as, “[t]his is a forward-looking statement” and “not guarantees of future performance” inadequate, because they were not tailored to the specific circumstances. Moreover, because shareholders alleged that Harman and the officers knew the company’s PND inventory was obsolete and did not disclose that the obsolescence “had already materialized,” the statements did not qualify for safe harbor protection.   

Next, the court held the reference to “very strong” sales was not puffery, finding that a statement cannot be puffery if a reasonable investor might understand the statement as an account of historical fact rather than pure corporate optimism. The court noted statements constituting puffery employed general terms of optimism so unconnected to anything capable of measurement that a reasonable person would not consider such terms important to an investment decision. The court held that because the statement related to a specific product and time period, it might be understood as a statement regarding Harman’s recent financial performance and, thus, did not constitute puffery.

Accordingly, the court reversed the dismissal of the complaint for failure to state a claim and remanded the case for further proceedings.

Primary materials for this case may be found on the DU Corporate Governance website.


SEC v. Zada: Affirming District Court’s Decision Granting Summary Judgment

In SEC v. Zada, 787 F.3d 375 (6th Cir. 2015), the United States Court of Appeals for the Sixth Circuit affirmed the decision by the United States District Court for the Eastern District of Michigan granting summary judgment in favor of the Securities and Exchange Commission (“SEC”) against Joseph Zada (“Zada”) for violations of the Securities Act of 1933 and the Securities Exchange Act of 1934.

According to the “undisputed evidence,” Zada represented himself as an “extremely wealthy man,” throwing lavish parties and “traveled with bodyguards.”  Zada would meet with potential investors and inform them of his connections with Saudi Arabia, telling investors he could use the funds to make large purchases of oil that would be stored on offshore tankers and be sold when oil prices rose. Investors were given promissory notes.  Zada ultimately raised almost $60 million from investors in Michigan and Florida.   

As the court noted:  

  • Little of what Zada told the investors was true. Zada's connections with Saudi royalty existed only in his imagination. On one occasion Zada invited investors to a party, where he paid actors to pose as a Saudi prince and princess. And Zada never bought any oil; instead, he used the investors' money to pay his personal expenses, which were substantial. For example, Zada spent over $4 million of investors' money to pay his personal credit-card bills. When Zada paid investors anything, he used money raised from other victims.


The SEC filed a civil enforcement action in the United States District Court for the Eastern District of Michigan, alleging violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. Specifically, the SEC alleged Zada violated the anti-fraud provisions of the Securities Acts and failed to register securities. Zada asserted his Fifth Amendment right prompting the SEC to move for summary judgment, which the district court granted.

On Appeal, Zada argued: the investments he sold were not securities; he did not lie to every investor as to show securities fraud; and that the civil penalty would improperly punish him for invoking his Fifth Amendment privilege.

The court first addressed whether the notes were securities. To rebut the presumption that particular notes are securities, the defendant must demonstrate the notes bear a familial resemblance to other instruments that are not securities. The court uses four Reves factors to determine familial resemblance: (1) the motivation prompting the transaction; (2) the plan of distribution; (3) the reasonable expectations of the investing public; and (4) whether a “risk reducing factor” makes application of the Securities Acts unnecessary.

The court’s analysis focused primarily on the first factor—whether the victims’ purpose was investment or commercial-consumer. The court determined the investors had investment purposes since they expected a return on their funds. Therefore, the first factor favored the SEC. The court also found Zada sold the notes to a wide range of unsophisticated people and for investment purposes, favoring the SEC on the second and third factors. There was also no evidence of a risk-reducing factor favoring the SEC on the last factor as well. The court therefore concluded Zada had failed to rebut the presumption the notes were securities.

Next, the court addressed the securities fraud claim. A securities fraud claim requires proof that a defendant knowingly or recklessly made material misrepresentations or omissions in connection with the offer, sale, or purchase of securities. The Commission, according to Zada, had failed to show that he had made misrepresentation to all of the investors.  The court noted the SEC was only required to prove Zada made misrepresentations in furtherance of his plan and because the SEC established the elements as to every victim individually, it was not required to present testimony from every victim.  

Finally, Zada’s asserted that the imposition of a penalty of $56 million in part for the “lack of acceptance of responsibility” essentially amounted to punishment for the invocation of his Fifth Amendment against self incrimination.  The court noted that “the argument has some force.”  As the court noted:  “His decision not to testify, viewed realistically, reflects not a denial of responsibility, but a desire to preserve his options in a criminal case that had not yet even begun.”  Nonetheless, given other factors and the record as a whole, the court found the reference “harmless.”  

Accordingly, the court affirmed the district court decision granting the motion for summary judgment.

The primary materials for this post can be found on the DU Corporate Governance Website.



In re GM Co. Derivative Litigation: Shareholder Derivative Litigation Dismissed

In In re GM Co. Derivative Litig., C.A. No. 9672-VCG, 2015 BL 206881 (Del. Ch. June 26, 2015), the Delaware Chancery Court held the shareholders of General Motors Company (“GM”)(collectively, “Plaintiffs”) did not sufficiently plead GM’s Board of Directors (collectively, “Defendants”) breached its duty of loyalty to shareholders by acting in bad faith. Thus, the court granted Defendants’ motion to dismiss Plaintiffs’ derivative suit under Rule 23.1.

In February 2014, GM issued mass amounts of recalls over several months due to ignition switch malfunctions in automobiles. The defect caused many serious injuries and resulted in several deaths. As a result, GM lost approximately $1.5 billion against earnings through the first and second quarters of 2014, set up the Ignition Compensation Fund, and agreed to pay a civil penalty of $35 million. Based on these losses, Plaintiffs filed a derivate suit alleging the Defendants breached its duty of loyalty by failing to oversee GM’s operations. Plaintiffs challenged both the specific actions of the Defendants and the Defendants’ inaction by failure to oversee.

 Plaintiffs “must plead with particularity, the facts that raise a reasonable doubt that (1) the directors are disinterested and independent or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.” Shareholders in this case made “no attempt” to challenge the independence of the board. As a result, they asserted that the decision was not a product of a valid exercise of business judgment. Moreover, because GM had a waiver of liability provision, shareholders had to allege that the actions of the board were in bad faith.

Plaintiffs challenged the risk management system. Defendants’ allegedly transferred risk management from former CRO to the then General Auditor and from the Finance and Risk Committee to the Audit Committee. As the court described: 

  • The court characterized Plaintiffs’ claim that a transfer of duties was improper as allegations that were “merely conclusory.” Plaintiffs failed to sufficiently allege the directors had actual or constructive knowledge that their risk management system was inadequate. While acknowledging the transfer might, in hindsight, not have been a good decision, the court concluded that the allegations did not demonstrate bad faith. 

Second, Plaintiffs sought to show bad faith by alleging that Defendants “utterly failed to implement a reporting system, which would have apprised them specifically of serious injuries and deaths resulting from safety defects” and consciously failed to monitor existing systems. Under Caremark, director liability for inaction arises where “(a) the directors utterly failed to implement any reporting or information system or controls; or (b) having implemented such a system or controls, consciously failed to monitor or oversee its operations.”

The court concluded Plaintiffs did not sufficiently plead facts demonstrating the directors were liable for inaction. Specifically, the court found Plaintiffs did not plead with particularity that Defendants failed to implement any reporting system because Plaintiffs’ complaint conceded that GM did have a system for reporting risk. The court also found Plaintiffs failed to plead with particularity, the “existence of ‘red flags’ that the Board consciously ignored” or on any other basis, “knowledge that GM’s existing systems were inadequate. 

Accordingly, the court granted Defendants’ Motion to Dismiss for failure to comply with Rule 23.1. 

The primary materials for this case may be found on the DU Corporate Governance website.


Zhang-Kirkpatrick v. Layer Saver LLC: Promissory note held not to be a security

In Zhang-Kirkpatrick v. Layer Saver LLC, 2015 BL 85374 (N.D. Ill. Mar. 26, 2015), the United States District Court for the Northern District of Illinois held the promissory note documenting the parties’ agreement did not fall within the definition of a “security” under the federal securities law. Thus, the court granted defendants’, Layer Saver LLC, Kiolbasa, Pierson, and Seldon Fox (collectively, “Defendants”), motion for summary judgment on Plaintiff, Zhang-Kirkpatrick’s claim for securities fraud. 

According to the allegations in the case, Plaintff, Zhang-Kirkpatrick invested $150,000 in Layer Saver LLC (“Layer”). The investment arose from a series of meetings between Zhang-Kirkpatrick and Defendants, in which Pierson conveyed to Zhang-Kirkpatrick that Layer was a potential investment opportunity. Defendants told Zhang-Kirkpatrick the loan amount would be $150,000 with an interest rate of 15% a year and assured her Layer would be able to repay the loan. The parties agreed upon a promissory note with a July 2012 maturity date and secured with Kiolbasa’s intellectual property. Layer paid the accrued interest from January 2012 to April 2012, but failed to make any further payments. As a result, Zhang-Kirkpatrick brought suit claiming among other counts, securities fraud.

Defendants moved for summary judgment arguing the promissory note was not a “security.” A note is presumed to be a security. The presumption may be rebutted by showing that “a note bears a close resemblance to one of the enumerated categories of instrument” not considered to be securities. Defendants argued the promissory note fell into one of the enumerated categories, namely the note was a short-term note secured by a lien on a small business or some of its assets.

In determining whether the promissory note was a security, the court relied on the Supreme Court’s four-factor test in Reves v. Ernst & Young, created to assist in discerning between notes issued in an investment context and notes issued in commercial or consumer context. In order to determine if the note bore a close resemblance to one of the enumerated Ernst categories, the court assessed four factors: (1) the motivations that would prompt a reasonable buyer and seller to enter into the transaction; (2) plan of distribution of the instrument; (3) reasonable expectations of the investing public; and (4) whether the existence of an alternative regulatory scheme significantly reduces risk of the instrument.

In considering the first factor, the court disregarded the Plaintiff’s motivation (“looking to make a profit”) and focused on Defendants’ motivations to “correct for its cash-flow difficulties,” concluding that motivation “less sensibly describes a ‘security.’” 

Second, the court considered the plan of distribution of the instrument and whether there was common trading for speculation or investment. The court concluded this factor weighed in favor of Defendants because the transaction appeared to be “between two parties engaging in a short-term commercial financing agreement.” The court concluded the third factor and concluded, because there was no investing public involved in the transaction.

Finally, the court considered whether protection provided by federal securities laws was Zhang-Kirkpatrick’s only source of protection. The court concluded Zhang-Kirkpatrick had a remedy outside of federal securities laws. In sum, because the factors weighed in favor of Defendants, the court held the promissory note was not a security. 

Accordingly, the court granted Defendants’ motion for summary judgment with respect to the securities fraud count. 

The primary materials for this case may be found on the DU Corporate Governance website.


On it Goes: SEC Petitions for Rehearing En Banc in the Conflict Minerals Saga

On October 2, 2015, the SEC filed a petition for rehearing en banc of the August 18, 2015 panel opinion of the US Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. U.S. Securities and Exchange Commission.  (discussed here and here).  In that opinion, the Court reaffirmed its April 14, 2014 ruling that the conflict minerals rule violates the First Amendment in its requirement that companies disclose that their products have "not been found to be 'DRC conflict free'."

The SEC petition seeks rehearing only as to the First Amendment portion of the earlier opinion—not surprising since the rest of that opinion favored the SEC.  The agency argues that en banc review is appropriate because the August 2015 opinion conflicts with earlier precedent regarding compelled corporate speech.  In particular the SEC argues that 

  • En banc review is warranted because the opinion conflicts with this Court’s en banc decision in American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (“AMI”), as well as Supreme Court precedent, and it addresses issues of exceptional importance.
  • In AMI, the Court applied the less stringent First Amendment standard described in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), to uphold a requirement for companies to disclose “country-of-origin information about meat products.” Yet, despite the fact that it is “hard to see what is altogether different about another species of ‘geographical origin’ law requiring identification of products whose minerals come from the DRC, the panel majority refused to apply Zauderer in this case.
  • En banc review is also warranted because the majority’s holding that Zauderer applies only to compelled disclosures in advertisements and product labels addresses a question of exceptional importance. As Judge Srinivasan stated in his dissent, this “newly minted constriction of Zauderer . . . contradicts that decision’s core rationale.” No other court has limited Zauderer in this manner, and at least one other court of appeals has applied Zauderer to compelled disclosures outside of the advertising or labeling context. See United States v. Wenger, 427 F.3d 840 (10th Cir. 2005). Moreover, this holding could have far-reaching implications for governmental disclosure requirements, including those in the securities laws. 

It is certainly true that the August opinion has wide-reaching implications—in fact I have wondered why it received relatively little attention when first issued.  The conflict minerals rule implications are significant in and of themselves but the potential impact on a disclosure regulation regime is enormous.  An en banc decision clarifying the reach of Zauderer is of critical importance.

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